Wednesday, June 24, 2009

The Gay Marriage Push Is Negatively Affecting Legal Transgender Marriages

This is a guest post by the ever fabulous Monica of TransGriot

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One of the Prime Directives of being trans is to live our lives just like any cisgender person does. But one complication that has cropped up is when transpeople get married.

In 1960, Jacqueline-Charlotte Dufresnoy married her first husband at Paris' Notre Dame Cathedral. If she were attempting that today, because of the Roman Catholic Church's faith based hateraid of trans people, she probably wouldn't even be able to book Notre Dame Cathedral, much less get a Catholic priest to marry her.
Some areas of the world and faiths are more enlightened about transgender people getting married than others. But in the United States, marriage has been a major Culture War issue.

There has always been tension when it comes to the legal interests of transpeople vis-a-vis the interests of the gay community. On some subjects such as hate crimes and employment discrimination law, the GLBT community for the most part tends to be in agreement that the laws need to be passed as soon as possible.

The contentious arguments in the GLBT community on this issue have centered on how inclusive these laws need to be.

But when it comes to marriage, transpeople already possessed those rights. Transphobia, homophobia and ignorance have combined with adverse legal cases and conservative blowback over the 2003 Massachusetts court case legalizing gay marriage to mess with or restrict those rights.

And one of the motivations for invalidating transgender marriages centered on denying the transwomen monetary settlements or in Michael Kantaras' case, custody of his children.
One early case which set a disastrous legal precedent for the British trans community until the 2004 passage of the Gender Recognition Act was Corbett v Corbett. It also had negative legal implications for transpeople in the rest of the world whose national legal systems are descended from English common law.

Arthur Corbett had his marriage to transwoman April Ashley annulled in 1971. Corbett argued that his marriage was illegal because April was born male, she should be treated as such in perpetuity despite her gender surgery.

It also didn't help that at the time medical opinions on transsexuality hadn't evolved to the current point, and no consensus was reached on whether Ms. Ashley should be legally seen as male or female.
Lord Justice Ormrod, the judge in the case who was himself a medical man created a medical 'test' and definition to determine the legal status of April Ashley.

The result of this test defined Ms. Ashley as male despite a career as a successful model. It was unfortunately used in the UK to define the gender of transsexual people for many purposes until the passage of the Gender Recognition Act in 2004.

The Gender Recognition Act ultimately defined the sex of transsexual people as whatever is on their birth certificate.
The 1996 Defence of Marriage Act was enacted to keep same gender couples from marrying, but the unintended effects of it have been on the marriages of transgender people.
We witnessed the double whammy of Corbett being cited and DOMA being used retroactively to invalidate Christie Lee Littleton's seven year marriage.

Why? So an insurance company could deny her a multimillion dollar wrongful death lawsuit she filed on behalf of her late husband Mark Littleton. The conservative push to ban gay marriage has resulted as of November 2008 30 states passing constitutional amendments by lopsided margins. In some cases several of the same gender marriage bans go a step further and ban domestic partnerships as well.

Those amendments have had a deleterious effect on transgender marriages. Although our marriages are not specifically mentioned in them, foes and 'friends' have ignorantly asserted that trans marriages are 'same-sex' ones, and subject to these odious amendments. The gay community is guilty of doing so in order to push its marriage agenda.
The clash between the divergent issues of the trans and gay communities on marriage issues was illustrated in the recent case of Kimah Nelson and Jason Stenson's May 26 marriage being invalidated at the hands of New York City Clerk office.

The point is gay community, no matter what the genital configuration, it's a simple concept to grasp. If a transwoman marries a cisgender man, or a transman marries a cisgender woman, it is a opposite sex marriage, not a same gender one.

If you have a transman and a cisman trying to get married or a transwoman and a ciswoman getting married, it is a same gender one. Genitalia combinations and situations will determine whether it's a legal one or not based on jurisdiction.
But it bears repeating that in the zeal of the gay community to get married, it's the transgender community that once again, disproportionately gets the negative fallout from it.